A federal judge in Florida has scheduled a hearing Thursday on whether to unseal the affidavit that federal investigators used to justify a search warrant for former President Donald Trump's Mar-a-Lago home — a major point of contention between the government and the former president, his supporters and the news media.
The Department of Justice is arguing against unsealing the document for fear it could compromise an “ongoing criminal investigation” involving national security, while Trump and his Republican allies are calling the unprecedented search a major instance of government overreach and demanding the justification be made public. Several media companies, meanwhile, have urged the document be disclosed because of the public's "clear and powerful interest in understanding what occurred in these circumstances."
The hearing comes as investigators sort through the troves of documents — including some labeled top secret and highly classified — that they collected at the Florida resort last week, and prepare to take next steps in the case.
A group of news organizations, including NBC News, has filed court papers asking Magistrate Judge Bruce Reinhart to make public the affidavit that convinced him to take the extraordinary step of signing the warrant allowing FBI agents to conduct the search.
It was a request U.S. Attorney General Merrick Garland himself wrestled with. Garland carefully considered whether to seek a search warrant for Mar-a-Lago over a period of few weeks, a senior DOJ official told NBC News, confirming a Wall Street Journal report. Senior Justice Department and FBI officials held many meetings on how to proceed with the probe before Garland approved moving ahead with a search warrant, the official added.
In a statement last week announcing he was moving to unseal the search warrant and the property receipt in the case, Garland suggested he’d signed off on the search warrant out of necessity. “Where possible, it is standard practice to seek less intrusive means as an alternative to a search and to narrowly scope any search that is undertaken,” he said.
Justice Department lawyers said in a court filing Monday they're open to releasing more documents about the probe, but not the affidavit, which Trump and his lawyers said they have not seen. The filing said its premature release could “cause significant and irreparable damage to this ongoing criminal investigation.”
“If disclosed, the affidavit would serve as a roadmap to the government’s ongoing investigation, providing specific details about its direction and likely course, in a manner that is highly likely to compromise future investigative steps,” they wrote.
It could also interfere with witnesses they’ve already interviewed, and witnesses they could interview in the near future, the filing said.
The “information about witnesses is particularly sensitive given the high-profile nature of this matter and the risk that the revelation of witness identities would impact their willingness to cooperate with the investigation. Disclosure of the government’s affidavit at this stage would also likely chill future cooperation by witnesses whose assistance may be sought as this investigation progresses, as well as in other high-profile investigations,” the filing said.
The government also said the probe involves national security issues, adding, “The fact that this investigation implicates highly classified materials further underscores the need to protect the integrity of the investigation and exacerbates the potential for harm if information is disclosed to the public prematurely or improperly.”
The filing noted that the Department of Justice consented to having the search warrant and property receipt unsealed after Trump publicly disclosed the Mar-a-Lago search, and that Trump was already in possession of both documents.
Those documents, which the judge ordered unsealed Friday with the government's consent, showed there was a determination that the feds had probable cause to believe there were documents and records at Mar-a-Lago "constituting evidence, contraband, fruits of crime and other items illegally possessed" in violation of three laws involving mishandling of government documents.
A receipt of items the agents found at the property showed they removed 11 sets of classified documents, including some that were labeled secret and top secret, as well as other papers described as “SCI” documents — highly classified “sensitive compartmented information.”
The former president’s spokesperson tweeted out an email that he said was from a Justice Department official to Trump’s lawyers on Monday night indicated agents were still sorting through the numerous boxes of documents recovered by federal agents last week. The email said agents had mistakenly taken three of Trump’s passports in the search, one diplomatic passport and two others that were expired, and that they were being returned on Monday. Trump complained in a statement after his lawyers reportedly received the email that agents “stole” his passports “along with everything else.”
Trump and many of his top Republican allies, meanwhile, have called for the affidavit to be made public, something Trump said in a statement on social media he wanted done for the sake of "transparency."
Sen. Lindsey Graham, R-S.C., who's echoed Trump's inflammatory language that the search was a "raid," told Fox News on Monday that "The affidavit should help us a lot understand what happened here.” Without it, Graham said, "we’re flying blind in the dark and the American people are going through too much pain, too much heartache on this endless effort to destroy Donald Trump.”
“It’s time for the Department of Justice, they have no more benefit of the doubt in my view, to turn over the affidavit so all of us can look at it,” Graham said.
Glenn Kirschner, an NBC News analyst and former federal prosecutor, said he was skeptical of calls by Trump and his allies to make the affidavit public now.
Kirschner said that given the precedent for keeping these types of affidavits sealed until trial, along with the DOJ's assertion that the case involves national security, the affidavit is likely to remain under wraps, providing an opening for Trump and his supporters to insinuate outside the court room that there's some sort of coverup.
In a Fox News interview Monday night, Trump attorney Christina Bobb would not commit to filing a motion seeking the document’s release.
In their court filing, the news organizations seeking to have the affidavit unsealed argue that the public has a right to know the content of the probable cause that prompted the "historically significant, unprecedented execution of a search warrant in the residence of a former President."
“[N]ot since the Nixon administration had the federal government wielded its power to seize records from a former president in such a public fashion,” the filing said, arguing that “'clear and powerful interest’ in understanding these unprecedented events ‘weighs heavily in favor of unsealing’ the entire record filed with this Court,” including the affidavit.
The hearing is scheduled for 1 p.m. ET Thursday.